Posted: October 13, 2017 | by Brian W. Boyd
Employee handbooks provide a one-stop-shop for an employer’s rules, policies, and procedures. Drafting mistakes or omissions often result in mountains of avoidable litigation. It is vital for all employers to have a well-drafted, comprehensive, and legally compliant employee handbook in their arsenal. With this in mind, we have compiled a list of our top ten employee handbook oversights that can be easily avoided by employers.
1. Not Tailored to the Specific Employer’s Needs
A quick search of the internet will reveal a myriad of employment handbooks ripe for the choosing. Employers are cautioned against rubber stamping a handbook used by another employer, or worse, using boilerplate policies and language. Employee handbooks should be tailored to an employer’s specific needs. Simply retrofitting another employer’s handbook could potentially result in the employer taking on more responsibilities than they bargained for.
2. Fails to Include an At-Will Disclaimer
Employees have no room for doubt when it comes to employment status. All employee handbooks should contain a policy setting forth in clear and concise terms that the employment is terminable at-will. Not only will this ensure that employees are aware of their at-will status, but provides the employer a tangible policy to rely on should the employee challenge their status.
3. Ties the Employer’s Hands with Rigid Disciplinary Policies
This is the classic scenario where an employer thinks that drafting a strict disciplinary policy in their employee handbook will protect them from headaches down the road. These types of rigid policies, however, can bind employers to unnecessarily severe disciplinary action. Employers should instead adopt disciplinary policies that provide the employer the flexibility to determine what course of action is appropriate for that particular set of circumstances.
4. Attendance Policies Fail to Account for Protected Leave
Certain types of employee leave are protected under both state and federal law. Employers can inadvertently violate these laws by adopting policies that limit or otherwise punish an employee for taking leave otherwise protected by law. Employers should avoid any policy that encroaches on protected leave, including, but not limited to, FMLA leave, ADA leave, military leave, jury duty, or any other types of leave protected by law.
5. Policies Do Not Fit an Employer’s Actual Operations
It is easy for an employer to get wrapped up in the moment and develop a policy that sounds great in theory, but is incompatible with their daily operations. We often see employers who draft an elaborate and nuanced policy that does not reflect their daily operations and thus forget about it and violate it down the road. Employers are urged to take time to develop handbook policies that fit into their operations and only incorporate those policies deemed appropriate for their operations.
6. Policies Encroach on Protected Union/Labor Rights
The NLRB has recently relied an expansive interpretation of the NLRA to strike down a wide array of handbook provisions. These handbook provisions have been deemed unlawful as they encroach on NRLA-protected concerted activity. Employers should approach each and every one of their handbook policies with a fine-tooth comb to ensure their employees are fully able to exercise their NLRA rights.
7. No Notice or Reporting Procedures
Having an EEO policy and a FMLA policy are no doubt important components of any employee handbook. However, many handbooks leave employees to guess how to exercise their rights. All employee handbooks should clearly set forth what notice, reporting, and other procedures must be followed in order to exercise the rights and obligations spelled out in the employee handbook. Well delineated handbook procedures ensure that policies are consistently enforced and give the employer an opportunity to adequately document these events.
8. Fails to Document with Signed Acknowledgment or Receipt
One of the best ways for an employer to get sued by their employees is by failing to document certain aspects of their employment. For example, an at-will disclaimer can be bolstered by having the employee sign an acknowledgement form affirming that they not only have received the policy, but fully understand and agree to its terms.
9. Not Regularly Updated
Employment law is one of the most rapidly changing areas of the law. What may have been legally compliant when a handbook was drafted may quickly become outdated over time. It is thus important for employers to periodically revise their handbooks to account for these changes and draft new policies to address developing trends in employment law. Being ahead of the game may save an employer thousands of dollars in avoidable litigation expenses.
10. Failed to Consult with Experienced Legal Counsel
The best way to ensure that your handbook remains compliant with the law is to consult with experienced employer-side legal counsel before implementing any employment policy. One simple phone call to our law office could save you years of wasted time and resources.
Please contact Masud Labor Law Group should you have any needs in developing or revising your employee handbook.
Brian Boyd joined Masud Labor Law Group as an associate attorney in 2017. Since that time, Brian has taken a comprehensive approach to the law to solve the complex problems faced by our clients.
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